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First Attempts at Undoing the Consequences of Violating the Rule of Law in 1944–1956**

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First Attempts at Undoing the Consequences of Violating the Rule of Law in 1944–1956** 7 PRAWO W DZIAŁANIU LAW IN ACTION 38/2019 DOI: 10.32041/pwd.3801 Maria Stanowska* First Attempts at Undoing the Consequences of Violating the Rule of Law in 1944–1956** I. DEVELOPMENT OF LEGAL AND FACTUAL CONDITIONS ENABLING THE APPLICATION OF SEVERE REPRESSIVE PUNISHMENTS The end, in May 1945, of World War II in Europe and the liberation of the Polish territory from the German occupation did not bring Poland full independence. The new authorities, recognizing the superior role of the Soviet Union, did their best to break any resistance on the part of the society that objected to limitation of the Polish state’s sovereignty. In order to achieve the purpose, state terror was applied in 1944–19561. Criminal law, enforced with the help of the system of justice and investigative bodies ensured effective fi ght against political opponents. Care was taken to cre- ate adequate conditions which would make it possible to apply severe repressions, among others, through the enforcement of decrees passed by the Polish Committee of National Liberation: the Criminal Code of the Polish Army2 of 23 September 1944 and the Decree on the protection of the State3 of 30 October 1944, with the sanction of capital punishment in every provision, as well as the Decree of Council of Ministers of 16 November 1945 on crimes particularly dangerous at the time of rebuilding the country4, replaced with the Decree of the same name of 13 June 19465 (the so-called ‘little criminal code’). The severity of repressions was further enhanced by the Decree of the Council of Ministers of 16 November 1945 on summary proceedings6, allowing the imposition of capital punishment or life imprisonment * Marta Stanowska is a Doctor of law sciences, retired Member of the Offi ce for Studies and Analyses of the Supreme Court, Poland, Email: [email protected] ** The manuscript was submitted by the author on 12 December 2018; the manuscript was accepted for publication by the editorial board on 6 March 2019. 1 For more details, see M. Stanowska, Rehabilitation of People Repressed for Activity for the Independence of Poland in the Years 1944–1956 in the Practice of the Warsaw Court, Prawo w Działaniu 32(2017), 7 et seq. 2 Polish journal of laws Dz.U. No. 6, item 27, as amended. 3 Dz.U. No. 10, item 50. 4 Dz.U. No. 53, item 300. 5 Dz.U. No. 30, item 192. 6 Dz.U. No. 53, item 301. 8 Maria Stanowska regardless of whether the law provided for such punishments for a given offence, with no possibility of appealing judgments issued in summary proceedings7. Changes made in the criminal procedure gradually phased out the independence of the investigating magistrate8 to fi nally eliminate it altogether when the Code of Criminal Procedure of 1928 was amended9. Preparatory proceedings were entrusted to the prosecutor (or military prosecutor) and public security offi cers (or Polish Army Intelligence Service offi cers). These bodies were also authorized to apply pre- trial detention. This state of law made it easy to detain people in relation to whom proceedings had not even been formally instituted. The absence of any control over the preparatory proceedings made it possible to ruthlessly deal with real or alleged political opponents. All too often, detention was also excessively extended. The prosecutor’s offi ce became actually subordinated to special services. The trial was in turn dominated by the prosecutor who actually directed the court proceedings. Thus, it was the public security or Military Intelligence Service authorities that had the decisive voice in the court proceedings. The communist authorities also had ensured monopoly in appointing judges. The appointment of judges, with the requirement of the procedure being repeated every year, was entrusted to the Minister of Justice. Pursuant to the Decree of 22 February 1946 on the registration and compulsory employment in the system of justice of people qualifi ed to take the position of a judge10, the Minister of Justice could, until the end of 1946, employ these people to work in the system of jus- tice for a period of one year with a possibility of extension for another year. The Decree, extended by subsequent amendments, remained in force until the end of 1952. In addition, what was abandoned in the Decree of 22 January 1946 on the exceptional admission to taking the positions of judges, prosecutors and notaries as well as to being entered on the list of attorneys-at-law11 was the previously absolute requirement of completing university studies in law and judicial training12. Pursu- ant to this instrument, the Minister of Justice could, during the 5 years from the entry in force of the Decree, appoint, among others, for the position of a judge, a person exempt from the obligation to have law studies and judicial training. The binding force of the Decree was also extended13. It was thus obvious that judges of this kind would offer full cooperation to the authorities. In addition, the hitherto effective ban, forbidding judges from being members of a political party, resul- ting from Article 121 of the Law on the Organization of General Courts (‘and in particular a judge must not belong to any political faction’)14, guaranteeing judges’ 7 Summary proceedings were applied only in general courts. 8 A. Lityński, O prawie i sądach początków Polski Ludowej, Białystok, 1999, 117–122. 9 Law of 27 April 1949 on Amendments to the Provisions on the Criminal Procedure, Dz.U. No. 32, item 238. 10 Dz.U. No. 9, item 65. 11 Dz.U. No. 4, item 33. 12 Interestingly, attorneys-at-law were not released from the obligation of completing law studies and passing examinations required by the law. According to I.S. Grat, the opinion of the Ministry of Justice seemed to indicate that the abandonment of this obligation could adversely affect ‘the professional and ethical standards of the Bar’ – I.S. Grat, Uchwalenie dekretu z 22 stycznia 1946 r o wyjątkowym dopuszczeniu do obejmowania stanowisk sędziowskich, prokuratorskich i notarialnych oraz do wpisania na listę adwokatów, Miscellanea Historico-Iuridica, 6/107(2008), p. 107. 13 The last extension was made by the Law of 29 December 1951. 14 Order of the President of the Republic of Poland of 6 February 1928 – Law on the System of General Courts, Dz.U. No. 12, item 93. First Attempts at Undoing the Consequences of Violating the Rule of Law in 1944–1956 9 impartiality, was repealed by the Decree of the 14 March 1945 on amendments to the Law on the Organization of General Courts15. The communist authorities’ lack of confi dence in general courts resulted in a signifi cant limitation of the competence of general courts in favour of military courts16. The system of military courts was organized from scratch and this provided full control over their activity. Military courts did what they were expected to do. The sentences were very severe. There were approximately 100,000, perhaps even 150,000 of political prisoners sentenced to long-term imprisonment for anti-state offences. In the years 1944–1947 alone, over 2,500 people were convicted to capital punishment for political offences17. J. Paśnik reports that in 1945–1953 military courts convicted over 81,000 people18 (including 65,000 people in 1946–1953 alone) of crimes against the state and the penalties imposed were very severe. According to Z. Leszczyńska, who presented profi les of the persons convicted by the Military Court of the Garrison of Lublin and the Military Court in Lublin in 1944–1945, at the Lublin Castle alone 210 people were sentenced to capital punishment and 125 of them were executed. The sentenced were (apart from 26 deserters from the army) people who had fought for independence, predominantly Home Army soldiers19. More than half of those convicted in 1950–1953 were sentenced to imprisonment for over 5 years, life sentences, and capital punish- ments20. A. Lityński estimates that in 1945–1954 approximately 5,860 people were sentenced to capital punishment for offences against the state and 70% of those sentences were carried out21. The authorities did not stop at providing legal safeguards. What guaranteed strict performance of the new tasks was – following the Soviet model – adequate cadre. It was the tried and tested Soviet offi cers who were entrusted with the formation of the Military Intelligence Service. At the beginning of 1946, 90.3% of executive posts in the MIS were still occupied by Soviet offi cers. Although the situation gradually changed as the Polish cadre were being prepared22, there is no doubt that Soviet offi cers in the Polish Army Intelligence Service formations, with Dmitry Voznesenski, head of the Main Board of the Polish Army Intelligence Service, played a signifi cant role in the development of a repressive policy in the armed forces23. Soviet offi cers also acted as prosecutors in the Supreme Military Prosecutor’s Offi ce, judges in the Supreme Military Court, as well as advisors 15 Dz.U. No. 9, item 46. 16 It was only the Law of 5 April 1955 on the Transfer to General Courts of the Hitherto Jurisdiction of Mi- litary Courts in Criminal Cases Concerning Civilians, Public Security Offi cers, Citizen’s Militia and Prison Service (Dz.U. No. 15, item 122) that restored the jurisdiction of general courts over a vast majority of these offences (with the exception of espionage). 17 M. Turlejska, Te pokolenia żałobami czarne… Skazani na śmierć i ich sędziowie, Warszawa, 1990, 26, 106–107. 18 J. Paśnik, Prawne aspekty represji stalinowskich w Polsce, Dziś 7/101(1991), p. 101. 19 Z. Leszczyńska, Ginę za to co najgłębiej człowiek ukochać może.
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